(This is the first of a two-part series. Tomorrow: An excerpt from the author's companion article, “Senator Feinstein’s Election Reform Bill: A Constitutional Heresy,” describing even graver concerns about S. 1487, a bill recently introduced in the Senate.)

In September of 2003, when I was working with VerifiedVoting, Greg Dinger, Keone Kealoha, and I coordinated the first national activist effort in the current grassroots election integrity movement. We had a calling campaign to get more co-sponsors for Representative Rush Holt’s (D-NJ) election reform bill, then called HR 2239. In two months, the number of co-sponsors more than doubled — from 29 to 61. After the disastrous November 2003 Fairfax, Virginia, election, we rejoiced when Republican Representative Tom Davis (R-VA) signed on and the bill became bipartisan. By the end of 2003, there were 94 co-sponsors.

But Rep. Bob Ney (R-OH) was chairman of the House Administration Committee, and the bill never even got a hearing. Nor did Holt’s subsequent version of the bill in the 109th Congress, HR 550. But this year’s bill in the 110th, HR 811, has been marked up in committee and is expected to soon come to the House floor for a vote. This should be a time for celebration for me, but it’s not.

After more than three years of supporting election reform bills introduced by Representative Rush Holt, I am saddened to see the many severe flaws in the version of HR 811 as it was passed out of committee last month. This year’s bill had serious flaws when it was introduced in January. Primarily, it failed to accommodate a nearly unanimous agreement among citizen activists and computer scientists who have watched election disasters over the past three years — the agreement that electronic voting machines (DREs) should not be used in U.S. elections. I worked with many people to try to get an amendment requiring a paper ballot, one that was actually to be counted, for every vote cast. To my mind, that one significant improvement would have been worth tolerating the other flaws.

But the bill that was passed out of committee still allows for invisible, unverifiable, electronic ballots on DRE touch-screens as the official ballot for the all-important initial count where electronic voting systems are used. Adding a "paper trail" to those machines makes no real difference. Voters still can’t verify the electrical charges that make up the ballots that are counted on Election Night by the DRE.

In addition to other flaws that remained in the bill as it came out of committee, some changes removed valuable safeguards from the bill, and other changes introduced new problems. (Both versions of the bill can be viewed by inputting "HR 811" at the government's legislation search engine, Thomas.gov. The complete text of the current version is here. )

In my opinion, HR 811 will cause more problems than it will solve.

My primary objection is the extreme shift in the concept of “democracy” that the bill institutes legally. Specifically, it gives a federal stamp of approval to “ballots” that will never be counted, and it endorses secret vote-counting.

Let me explain seven of the bill's severe failures....

1) Under HR 811, some “ballots” don’t have to ever be counted.

The foremost flaw in HR 811 (both the introduced version and the version passed out of committee) is that the bill amends the Help America Vote Act (HAVA) to allow for “paper ballots” that will never be used for anything at all, not for the initial count and not for any audit, since most HR811-mandated audits will count only 3% of those ballots, in some cases, and in some cases, as many as 10% of the them.

The very first requirement listed in HAVA [Section 301(a)(1)(A)(i)] is that all voting systems “permit the voter to verify (in a private and independent manner) the votes selected by the voter on the ballot before the ballot is cast and counted.”

Since voters can't see inside the inner workers of the compuer, they cannot verify their electronic ballot before it’s cast and counted, so this legal requirement of HAVA is presently violated wherever electronic voting machines (DREs) are used. But instead of enforcing the requirement, HR 811 legitimizes the violation. Although a DRE system with a so-called “voter-verified paper ballot” would permit the voter to verify a paper record supposedly representing their vote, the paper record is not the ballot that is cast and counted. While that is now the case in many jurisdictions, no state or federal law, yet, defines those non-counted records of the vote as “ballots.” We’ve had some wiggle-room for democracy, and HR 811 takes it away by declaring uncounted paper records to be “ballots.”

2) Secret vote-counting is endorsed.

One of the committee changes that removed an important value in the bill is the “disclosure” section. That section has now become a reversal of the original Holt position. Holt’s 2003 bill said simply:

No voting system shall at any time contain or use undisclosed software. Any voting system containing or using software shall disclose the source code of that software to the Commission, and the Commission shall make that source code available for inspection upon request to any citizen.

As originally introduced in 2006, Holt’s HR 811 version was even stronger:

source code, object code, executable representation, and ballot programming files [shall be made] available for inspection promptly upon request to any person.

The position is very clear, a simple mandate for public disclosure, without any exceptions or conditions. But the current HR 811, as rewritten in committee, takes four and half pages to describe the “disclosure,” and if you unravel the terms and conditions, you discover that public disclosure is prohibited, rather than required (unless a state passes new disclosure laws of their own and amends their current trade secret laws specifically to get around this mandate.)

People say, “oh well, who would examine the software and find errors and malicious code anyway?” But that’s not the point. The point is that a government claiming to be democratic should not endorse secret vote-counting.

Once we have legitimized that “ballots” need not be counted and have endorsed the practice of secret vote-counting, how is it that we are a democracy?

And there are still more serious problems with the bill as well...

3) Audits are inadequate and contain an invitation to tamper.

The bill requires what it calls “audits.” But many experts who have researched election audit methods agree that the model in HR 811 will not be effective or provide confidence. Furthermore, the precincts to be selected “randomly” and audited “without advance notice” can be announced long before the audits actually start — thus enabling tamperers to fix up the ballots in the chosen precincts.

America has a long and sordid history of ballot tampering. With electronic voting, wholesale theft may be just a matter of a few well-placed keystrokes. The prize of controlling government spending is bigger than ever. Attempts to steal elections will continue, and the audit provisions in HR 811 won’t even present a serious obstacle.

4) The “ban” on electronic communications and networking is incomplete and convoluted.

The ban on wireless communications is confusing and unenforceable. In contrast, Holt’s first bill, HR 2239, said simply:

No voting system shall contain any wireless communication device at all.

That was a good start, and the latest bill should have banned ALL communications and networking capability. (What difference does it make to tamperers if they use a cell phone or land line or Internet connection, or even telegraph as they did in the old days? If you aren’t convinced, read Pokey Anderson’s “Even a Remote Chance?”.

Instead, the new HR 811 gives a convoluted mandate:

No voting system shall contain, use, or be accessible by any wireless, powerline, or concealed communication device, except that enclosed infrared communications devices which are certified for use in the voting system by the State and which cannot be used for any remote or wide area communications or used without the knowledge of poll workers shall be permitted.

What does the exception for "infrared communications devices" mean, and how would poll workers know about any hidden communications devices? They wouldn’t. This new provision is incomprehensible to the ordinary person ... and it’s unenforceable.

HR 811 is even ambiguous about Internet connections. The title of the section sounds promising, “Prohibiting Connection of System or Transmission of System Information Over the Internet.” But the text of the section does not refer to a SYSTEM at all, but just a DEVICE. So it appears that while a voting device such a DRE touch-screen voting machine may not be connected to the Internet, the all-important central tabulator computers (which hold the final tallies) can be connected to the Internet — an invitation to dial in and change the results.

5) The impossible is required.

HR 811 requires all configuration files used in any voting system to be certified by the State and escrowed with the U.S. Election Assistance Commission (EAC).

The problem is that ballot configuration files are different for every precinct in every election; some counties have thousands of precincts; some states have hundreds of counties. And there might be a window of a few weeks, just before the election, for the State to certify the tens of thousands of configuration files to be used in an election.

Is it possible? No. It’s no more possible than it is to conduct adequate pre-election testing on the thousands of DREs in use in some counties, which is why they simply aren’t tested before an election.

An excellent provision in HR 811 when it was introduced was a requirement for emergency paper ballots to be available in case machines break down — as they always do, and as we saw week after week during the 2006 election cycle. Recent elections have seen untold numbers of registered voters turned away from the polling place because the DREs broke down or malfunctioned. So, having emergency paper ballots on hand is absolutely essential.

But that provision is no longer present in the current official version. (Oddly, it was still in the version approved by the committee, and the question remains why it is no longer in the official version destined to go to the floor.)

Instead, the bill now requires that paper ballots be offered to any voter who wants one. This provision would allow voters to choose paper ballots when the machines are broken — or for any other reason. That’s good. However unlike the original provision, this option won’t take effect until 2010, and it won’t ever apply to early voting, even after 2010.

Further, there is no explicit requirement for those paper ballots to be counted on Election Night with all other reported results from DRE systems, etc. The state of California has a similar provisional for voters to request a paper ballot if they prefer. And in violation of the intent of that provision, some elections officials in the state announced they would not even begin to count such ballots until the Thursday following the election. Results reported on Election Night --- the all important ones reported in the news and establishing the “winner” in everyone’s minds --- would be skewed to represent the results of those who trust the use of DRE voting machines.

So, with new equipment required in a huge number of precincts across the country, 2008 is certain to see more of the same disenfranchisement that the original HR 811 was intended to halt. And this current version of the bill does nothing to address the disenfranchisement that broken voting machines will cause in early voting — ever.

7) The dysfunctional Election Assistance Commission (EAC) is made permanent.

Reports from the Government Accountability Office reveal that the Election Assistance Commission is incompetent, behind schedule by years, and derelict in their duties. Recent news articles regarding their suppression and subsequent altering of a Voter Fraud report, along with their undisclosed disapproval of the CIBER voting system test lab, has shown that the EAC is partisan and secretive. The process by which the 2005 federal voting systems standards were developed show that the agency is unduly influenced by the interests of voting system manufacturers. Yet, HR 811 puts these four Presidential appointees in charge of more duties than those they've inadequately handled so far, makes the EAC a permanent agency, and provides it with permanent funding.

I have not addressed every problem with the bill. But these seven problems are sufficient to convince me that this bill is not just “imperfect.” In my opinion, the flaws in this bill are more damaging to democracy and our future election process than the good that might come of the minimal safeguards it could provide for our elections in 2008 and beyond. So, far from celebrating that a Holt election reform bill will finally come to the floor for a vote as I might have been back in 2003, or even 2005, I am now filled with sadness. This bill should never be passed as it is currently written.

Real ballots vs paper trails - Phony election activists, like those at DU, continue to con unsuspecting folks about what a ballot actually is. For over 200 years, a ballot has always been something that a voter marks his/her vote on. We must not allow these folks to redefine just what a ballot is.

DREs cheat - let's call a spade a spade...DREs are an abomination to honest elections, proven by hacking tests, and thousands of reports of wrong votes recorded. As far as I am concerned, anybody who poses as an activist but DOES NOT CALL OUT FOR AN IMMEDIATE BAN ON DREs is a fake activist, with unscrupulous reasons for supporting this damn bill.

The Congressional Democrats' terribly disappointing twin failures to demand a timetable for ending the Iraq War and support meaningful election reform show that they are not an effective counterforce to the Bush administration. Supporting a third party for Congress is not the answer to their failures, as it will only ensure the election of more Republicans. The only way to establish a meaningful opposition to the present regime is to find and support strong primary challengers within the Democratic party. We must support these challengers against incumbent Congressional Democrats who do not, at a minimum, demonstrate support of the following: 1) a rapid withdrawal of American troops from Iraq; and 2) legislation guaranteeing fair and transparent elections (chiefly by banning DREs). Every Congressional Democrat who does not meet these minimum thresholds must be made to understand from the grassroots that their craven conduct will lead to loss of elective office.

While the actual text that boldly stated "EXTENSION OF AUTHORIZATION OF ELECTION ASSISTANCE COMMISSION" in the original version of H.R. 811 has indeed been dropped in the version passed out of committee... the committee version instead amends HAVA to fund the EAC in perpetuity by quietly bypassing the EAC's sunset clause.

`(A) ESTABLISHMENT OF ESCROW ACCOUNT- The Commission shall establish an escrow account (to be known as the `Testing Escrow Account') for making payments to accredited laboratories for the costs of the testing carried out in connection with the certification, decertification, and recertification of voting system hardware and software.

... obviously this is a permanent arrangement, one of many such permanent prerogatives for the EAC in the committee version, so let's skip to...

(D) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated to the Election Assistance Commission such sums as may be necessary to carry out the Commission's duties under paragraphs (3) and (4) of section 231 of the Help America Vote Act of 2002 (as added by subparagraph (A)).

And there's even more...

So "Holt II" still funds the EAC and funds it in perpetuity and there's much more money involved with it now. The committee version now simply funds the EAC en passant instead of honestly overriding the original sunset clause.

This was not an accident, by the way, this is the creation of a new and badly designed Federal-level bureacracy. It's obvious in hindsight that this creation of an e-voting empire was part of the price Holt felt he had to pay to get election reform passed.

And just like so many of his Democratic colleagues in Congress he fails to see that agreeing to such a bad bargain "on our behalf" was not his choice to make in the first place.

America is facing its worst summer drought since the Dust Bowl years of the Great Depression. Or perhaps worse still.

From the mountains and desert of the West, now into an eighth consecutive dry year, to the wheat farms of Alabama, where crops are failing because of rainfall levels 12 inches lower than usual, to the vast soupy expanse of Lake Okeechobee in southern Florida, which has become so dry it actually caught fire a couple of weeks ago, a continent is crying out for water.

Since HR 811 will do more harm than good, it's a good bet that it will get passed. Since nothing but turds and burnt ash are left behind anything this administration touches. Our senators behave like they are mentally challenged. Perhaps they are, when it comes to electronics. Perhaps that's the whole problem here, that they are so clueless they don't know what they are passing anymore. I rather doubt that at this point, I went that route early on when I was giving benefit of the doubt to the SOS's that were allowing Electronic Voting MAchines, I said, they were clueless, mis-informed, or corrupt.
Today I say, "CORRUPT." There is no other excuse, if they don't understand the crap, kill it.

So what is the count now of the damage?

Habius Corpus, Genevia Convention, 1,2,3,4,5,6,7,8,9,10 or the Constitution, and now no voting.

Not to mention all the crony positions.
FCC, FDA, DHS, FBI, CIA, NSA, I guess some military crap has gone bad too.

Am I missing more? I am pretty sure I am, but what does it matter? Oh yeah the Judicial. And the Corporate media. That pretty much is all of it ain't it? We don't have the Senate!!! If we did they would have done something.

You can't get health care, you can't go bankrupt, you can't ask questions.

What else, The Borders still ain't secure, and we're a pissin off a plethora of countries, then add to that this Total Executive Power double whatever directive(s) that you can't even find on the whitehouse.gov search engine if you TYPE THE EXACT NAME IN!! It's like they're expecting some new crap (event?) to happen so they can connect the rest of the dots, and just have the United Dictatorship of the World with (worse than) 24/7/365 martial law and everything grinding to a halt.

I've personally had it. I been quiet lately cause I need a break from this crap. If we can not even vote anymore there's not much of anything left anymore. No need to bother anyone in the government anymore, perhaps, it's time to just disappear from them. Oh wait, can't do that either, can't even leave the country. I ain't even going to write my Senators anymore. Why should I bother with the anguish it puts me though, I am sick of it, it's like babysitting a fucking two year old.

If I were dictator for a day, I swear to god there would be so many government people in jail that we'd need to build a prison camp. If they could prove their innocence --- great, but until then, their security cards are revoked and shredded, keys removed, access denied, vaults locked, and the whole military, would be moving to guard the 360 degree border of the United States, not this quagmire lost cause in Iraq.

I wish some ballsy General would pass out some "JUST DO IT." Cards, where you take it upon yourself to just clean up this corruption.

Dude, I mean Dredd, (I hope I can call ya dude, maybe one day we'll have a few beers....)

2525 heh heh heh, I pray not.

But seriously, I been saying, what about at the DOPING level?

Who's to say some rf packet burst can't totally change the logic?

Who's to say what the part number on a chip is really what is inside the chip?

Who's to do the destructive reverse engineering on every single part inside every box and network from point a to point b?

Who's to say the chip even is working? Part's burn out on their own with no help at all.

It's the electronics stupid (And no Dredd is not stupid.) The electronics make software look like a piker.

Actually the reality is it's more than that. It's racism, it's disenfranchisement, it's caging, it's just plain fscked up...every way you look at it, the more you look the more you find, the more you find the more pissed you get the more pissed you get the more your body suffers from stress.

And as a special side note, the low frequency humming at my home has really been bad the last few days. A +20db can't even sleep at night. I know the energy (whatever the specifics are) is aimed at my house, because the moment I walk through the threshold of a door, or a window the sound almost completely goes away.

Some people call this the TAOS HUM, I call it mental torture. It's fucking bullshit. It's not an astral hum either, that don't bug me, that's high frequency.

The torture noise, is low frequency, like a Diesel Engine Idling a few blocks away, but there IS NO TRUCK, and it's only INDOORS, if you go out, past the threshold of the window, or the door, the db level dies.

Besides, other than the amoral, illegal Iraq war which is tanking this country, no candidate is speaking about the HUGE "elephant in the room" which is our disgusting health care system.

We have 45 Million americans without any form of health care, which doesn't include those elders on Medicare, so what does that leave in terms of those who can "afford" to have health care??

If we weren't spending millions of dollars (before breakfast) each day in Iraq, just imagine how easily we could provide free health care to all citizens???

This is a form of genocide - the sad fact that so many of our citizens must choose between a roof over their head or medications and health care - or food on their table and their medications/health care. What are we doing?? We're taking our eye off the ball....we're not tending to our own backyard....we're spending billions of dollars on death and destruction instead of taking that money and doing something humaitarian - throwing good money, as they say, after "bad"....very bad!

If a candidate arrives on the horizon who speaks about "health care for all" and this doesn't mean some cockamamie project like Edwards or Hillary's "affordable health care" proposals, then they will win this election HANDS DOWN.

Free Health Care For ALL is the name of the game and the certain "win" in 08! So far, the next President has not even come to the stage, as far as many people are concerned.....WHO WILL IT BE??

Sure - we need to be concerned about the genocide in Darfur....but what about the genocide in our own country going on right under our noses? Isn't the fact that so many americans cannot afford the health care they need to sustain life a form of genocide?

I would agree with you that exit polling has always been a fairly accurate benchmark; however, it's now been shown that while americans slept believing that they would have a Democratic President in the White House, the "gremlins" were going to town to corrupt the exit polls to ensure their synchronicity with the results. So where does that leave exit polling now?

I suspect that this discussion/argument will be still occurring when election '08 rolls around so we can chalk another "stolen election" up to our stats. Perhaps it's best to keep one's head in the sand and believe the brainwashed mantra about how honest and great we are??

Dredd I have never thought of you as arrogant and according to the ad for Arrogant Bastard Ale you must be sophisticated.

Phil # 8 You say; "If I were dictator for a day, I swear to god there would be so many government people in jail that we'd need to build a prison camp."
I would do the same so maybe what you need is "someone" to come and make a regime change. As your neighbour I feel the frustration so can only imagine how it must be for you guys. Sorry all we can do is maybe send in more Canadian Geese.

Re: The outlaw Ken Blackwell Clause - where is he in the complicit mess which occurred in Ohio? After all, he was Co-Chair of Bush/Cheney 04 while maintaining the conflict of interest of also being State Elections Committee Head. Where's the goods on Blackwell and his Diebold connection??

One relevant point about the well-developed exit polling science is that they never count all the votes. They don't count any votes as a matter of fact.

But they get it right.

So Ellen's argument is half-baked unless and until she explains why the fact that some paper ballots will not be counted is dispositive of the issue.

The science is all about proper sampling.

The smart comparison is somewhat apples and oranges as I see it.

For one, as you well know, Exit Polls (whether right or wrong) have no legally binding status, whereas "ballots" do.

Furthermore, if you are auditing paper trails from a DRE election, there is exactly NO WAY to know whether or not ANY of paper trails used for the audit (really, a spot-check) have ever been been verified as accurate by the voter.

So you've got a misleading impression given to voters that their "paper trails" will actually be used to derive the results of the election (none of them will be counted by anyone or any thing on election night, and only 3 to 10% of them at some point down the road) and when/if any of those trails, which they call "ballots" are actually counted, there is no way to know that a single trail being counted actually represents the intent of the voter.

True paper-based ballot systems including hand-marked paper ballots are, by definition, a known reflection of the voter intent. There is no way to have any knowledge of the actual voter's intent when "auditing" "paper trail" elections.

Hope to publish an article soon on how one can rather easily steal an entire national election via a DRE with "paper trail" system, in which the paper trails match the gamed machines results perfectly.

A Holt audit of such paper trails would prove that DREs are "accurate" once and for all, despite the fact that both the machines, and the "voter-verified paper audit trails" (VVPAT) have each been gamed. Right under the nose of vigilant voters.

Abacus asked where in the bill it extends the EAC indefinitely. In addition to the sections The_Zapkitty pointed to, there is one that is very definite, though not explicit. At the end of Section 326 - payments to states for audits.

`(e) Authorization of Appropriations- There are authorized to be appropriated to the Commission for fiscal year 2008 and each succeeding fiscal year $100,000,000 for payments under this section.

there is no way to know that a single trail being counted actually represents the intent of the voter.

To add to this, there is a new doctoral dissertation --- based on research as opposed to the speculation that so much is based on these days --- that tells us 60% of the voters in the study failed to notice incorrect information on the review screen of the DRE. If that's the case just imagine how many would notice errors on the paper printout. In her dissertation, Sarah P. Everett of Rice University says:

These studies also go beyond usability comparisons and test whether voters notice if their final ballots on the DRE reflect choices other than what the voters selected. Results indicate that over 60% of voters do not notice if their votes as shown on the review screen are different than how they were selected. Entire races can be added or removed from ballots and voter’s candidate selections can be flipped and the majority of users do not notice.

Thanks Brad & Ellen for enlightening us and I appreciate the factual information you provided;however, it is far from assuaging my fears that my vote will count! As for me, I've already made up my mind and unless/until I see that there is a serious attempt made to thwart the hijacking of yet another election (I firmly believe that George Bush was the "president who never was"), I think I'll forego the hassle of even attempting to vote. As of this moment, that situation certainly does not exist anywhere in this country. We've gone through more to ensure the validity and honesty of Iraq's election (albeit under armed guard and curfew!) and still allow this chicanery to exist in ours - amazingly disgusting! So for now I'll have to pass on voting anytime soon and simply say: No thanks!

Yes, we're in a mess. But I think there are two primary purposes for voting:

1) to elect the candidates
2) to vote for democracy.

When I see 30% voter turnout, it makes me very sad that 70% of the people appeared to have voted against democracy. If purpose #1 is in question, you can still fulfill purpose #1 by voting. And who knows, your vote might just actually count. Of course, if you don't vote, then you can be sure it won't.

News flash:Dennis Kucinich has withdrawn his support for the Holt bill, and he plans to reintroduce HR 1600 which would require paper ballots for Presidential elections beginning 2008. Thank you, Dennis!

Um, where do you live? Given your comments, I'm beginning to think you may be up to less good than you originally appeared here. Wherever that is, I'm guessing that you can vote by a paper ballot, even if it's via absentee. So to suggest the remedy for our electoral woes is to not vote --- a fear suggested time and again by the DNC and friends, despite any evidence to back up such a fear --- makes me rather suspicious of the true intent of your motives in suddenly posting all of these comments today at BRAD BLOG.

I encourage folks to review The Election Reform Document on my website. www.johnrussellforcongress.com . The Holt Bill, too weak in the initial phase, has been transformed into a total POC. In Florida we have endured all of the tricks and understand that the crooks are always two steps/iterations in their plans to steal the next election... ahead of us. Stay vigilant. Learn what is non-negotiable pertaining to election reform... stick to it and keep ramming it down the throat of all these legislators that are stalling on behalf of keeping control... for the "Corporation" John Russell, Contestant,CD 5 Fla. 2006

Furthermore, if you are auditing paper trails from a DRE election, there is exactly NO WAY to know whether or not ANY of paper trails used for the audit (really, a spot-check) have ever been been verified as accurate by the voter.

Yes, and if you aren't auditing paper trails you aren't. So what? I did not address that issue at all. Neither did Ellen in her point #1.

The question "are they paper ballots or are they paper trails" is one of ultimate fact. Neither side of a debate can command the answer. Both sides are limited to presenting argument. Only the judges can decide if you win or loose your argument.

Making a conclusion of ultimate fact in an argument won't work before a tribunal where these issues will surely end up some day.

Then and there the arguments will be required to refer to the statutory text, offer interpretation, then persuade the judges with valid argument that the interpretation advanced is in fact, and law, correct.

And the only arguments that will work there are appropriate ones based upon the law of statutory interpretation. It is, after all, the law that legal interpretative techniques be used to interpret any congressional statute. And those laws of interpretation are well settled.

Assuming by concluding on an ultimate fact is a form of arrogance in the eyes of tribunals that must consider both sides of an argument.

An attitude of "I'm right so you judges can tell my opponent to shut up so we can all go home now" won't get very far.

It is proper decorum to respect the other side's arguments and points by addressing such arguments directly and accurately. I have seen dire consequence come upon litigants who misrepresent the argument of an opposing litigant before a tribunal.

I like to imagine myself before a tribunal when I debate, so I may become more exercised in proper debate.

She argued at her point #1 that "some “ballots” don’t have to ever be counted". And she concluded that is ipso facto bad.

I countered that it is not ipso facto bad because enough could be counted to see if there is a discrepancy, using scientific sampling, as exit polling does.

The point I was trying to make is that pieces of paper defined as "ballots" need not ever be counted. I believe that is ipso facto bad. If they aren't going to ALL be counted, then they should be called "printouts" or "reports," but not "ballots."

You also said:

Your point #2 ("Secret vote-counting is endorsed") is half-baked.

It does not acknowledge that one of the two HR 811 bills is still around and may be the one that prevails. One of them still mandates open source code.

I wasn't speaking of other bills, only HR 811. However, it is difficult to believe that the software industry led by Microsoft could swoop into a House committee and reverse the disclosed software requirement with the greatest of ease, but would be unable to do the same in the Senate.

“(Steven F. Freeman, Ph.D., et. alia). One relevant point about the well-developed exit polling science is that they never count all the votes. They don't count any votes as a matter of fact.
But they get it right.
So Ellen's argument is half-baked unless and until she explains why the fact that some paper ballots will not be counted is dispositive of the issue.
The science is all about proper sampling.”
If the sampling is done correctly they do have a high probability of getting it right. That probability may not be as high as the probability that GWB was never elected president of the USA by the vote of the people but it is still very high.

But as you stated “The science is all about proper sampling.” where Proper is by far the most important consideration. When you do everything in your power to see that as many as possible of the votes that will not likely be for your candidate are not counted, as Karl Rove has been schooled to do and clearly is doing very very very well, then proper sampling is clearly not even close to being in the picture. To ignore all provisional ballots because Karl Rove and his cohorts in crime felt those people would not vote neoCon will never ever ever ever lead to proper sampling. So when you compare the science of exit polling to the NeoCon habit of selectively counting mostly likely favorable votes you have ventured well beyond the problem of comparing apples to oranges. You are comparing nonsense to logic. They never ever ever ever will be a match!

While the probability of and exit poll being correct if done properly can be very high it is never an exact science. That is why anybody who really supports democracy will insist that each and every vote be counted as cast. Anything less is a sham.

HR 811 is another opportunity for congress to pretend to be supporting democracy while not getting us any closer to being a democracy than we are now and that very clearly is not even close.

Whether the paper trails should be called ballots is a worthless side issue. If they don’t make their paper trails out of soft squeezable tissue they are completely worthless no matter what you all finally agree to label them.

So sadly Ellens claim that "Rush Holt's HR 811 Does More Harm than Good" sure looks like a very big understatement to me! Karl Rove should love the new version of HAVA the passing of HR 811 will create for him!

Whether the paper trails should be called ballots is a worthless side issue.

Only if you are on the worthless side of the argument.

Consider that american law requires that all portions of congressional statutes be given full meaning and that no part is rendered superfluous or meaningless.

Yesterday the Federal Court of Appeals for the 4th Circuit chided the US Attorney for making your argument:

To read the statute as the Government proposes would eliminate the second step and render the statutory language ... superfluous --- something courts are loathe to do. See, e.g.,Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 837 (1988) (“[W]e are hesitant to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law.”).

It is ultimately important whether the term "paper ballot", which appears some 49 times in the original text, means what it says and says what it means. Or whether it means "paper trail" even tho the term "paper trail" appears zero times in the text.

The mark-up seems to me to have been directed by the electronic voting machine industry, such as Diebold.

It removed or watered down the original requirement that the source code be made available to a citizen when the citizen requested a look at it.

Ellen thinks Microsoft was responsible, however, they represent only one operating system (Windows).

The congress cannot favor one operating system over another without justification, so for example, Linux and Unix should also be candidates for the operating system of electronic voting machines.

So I am still of the opinion that the Diebolds of the world had more to do with it than Microsoft did.

Brad made some comments on another thread a few days ago that gives me reason to believe his approach to criticising the bills is more reasonable a criticism of the bills.

He takes what I call an "operational approach" and argues that operationally (how the bill really works no matter what it says) is to elevate the vote information on a computer over paper ballots. And thus, he argues, the "paper ballot" lingo is like a human appendix and virtually useless.

That is a better logical approach than some of the other arguments IMO. However, as I explained to him on those other threads, when one is arguing before the official judicial tribunals that is going to be a difficult argument to prevail on.

Those courts are strongly in favor of the "plain text rule" which means they think congress means what it says when the text is plain, and they enforce the ordinary meaning of common words in such bills.

I think they would say that "paper ballot" in the context of the bills means exactly that and nothing else.

I went back over HR 811 as offered in Feburary, 2007, before the amendment to it came out of committee.

One of the stated purposes within the text of HR 811 is:

"to require a voter-verified permanent paper ballot"

That is four things:

1) voter-verified
2) permanent
3) paper
4) ballot.

The definitions, in the text of the bill, of those four things are:

1) voter-verified = "made available for inspection and verification by the voter before the voter's vote is cast and counted"

2) permanent = "the full duration of the retention and preservation period called for by title III of the Civil Rights Act of 1960 (42 U.S.C. 1974 et seq.) or under applicable State law, whichever is longer"

3) paper = "durable paper of archival quality capable of withstanding multiple counts and recounts without compromising the fundamental integrity of the ballots, and capable of retaining the information marked, printed, or recorded on them"

4) ballot = "examples of ... a ballot include": (a) "a paper ballot marked by the voter for the purpose of being counted by hand or read by an optical scanner or other similar device"; (b) "a paper ballot prepared by the voter to be mailed to an election official (whether from a domestic or overseas location)"; (c) "a paper ballot created through the use of a ballot marking device or system"; and (d) "a paper ballot produced by a touch screen or other electronic voting machine, so long as in each case the voter is permitted to verify the ballot in a paper form"

I think it can be fairly said that, in the clear absence of the term "paper trail" anywhere in the text of the bill, this bill is intended to focus on paper ballots to a significant degree.

Those four things mentioned in post #51 are given pre-eminence in the case of "any recount or audit". So far so good, but what triggers a recount or an audit?

This does:

In the event of any inconsistencies or irregularities between any electronic vote tallies and the vote tallies determined by counting by hand the individual permanent paper ballots produced pursuant to subparagraph (A), and subject to subparagraph (D), the individual permanent paper ballots shall be the true and correct record of the votes cast and shall be used as the official ballots for purposes of any recount or audit conducted with respect to any election for Federal office in which the voting system is used.

This is where the rub comes to some of the detractors of the bill. The phrase "electronic vote tallies" is scary because the bill does not trigger audits or recounts unless the election is very close.

Very close is a very small one or two percent difference between first place and second place. Thus, all the good things will not be invoked unless the election is almost too close to call.

There is one section of the text that could be read to require a random, unannounced audit of every election to be determined by the Election Audit Board, created by the new bill:

... an Election Audit Board to administer, without advance notice to the precincts selected, random hand counts of the voter-verified paper ballots required to be produced and preserved pursuant to section 301(a)(2) for each such election held in the State (and, at the option of the State or jurisdiction involved, of elections for State and local office held at the same time as such election).

(Sec. 321(a), emphasis added). That would really be a good thing. But it may not be the case.

Brad has argued that this is not operative and the real operative mechanism is only those cases where the vote is very, very close.

Thus, all that hackers or fraudsters would have to do is hack the vote or design the code with an eye toward making sure the election's unofficial count is outside the small percentage required to invoke the audit mechanism.

And that is a valid criticism because the text is ambiguous enough that a tribunal would so hold IMO.

The bill could be easily fixed to clearly state that the Election Audit Board must do a random audit of a proper number of precincts scientifically selected (as in the case of exit polls) no matter how far apart first and second place was in the electronic vote tallies.